The Center's Civil Rights & Criminal Justice Advocacy

As part of its mission to advance civil rights through advocacy, the Korematsu Center participates in cutting-edge civil rights cases, both via direct representation and through participation as amicus curiae (friend of the court). Through our amicus brief advocacy, the Center is particularly committed to the process of democratizing the courts—ensuring that the voices of those affected by the courts' decisions are heard. Many of the briefs the Center has authored are in partnership with outside members of the practicing bar and other community and advocacy organizations.

2018

New York Immigration Coalition et al. v. U.S. Dep't of Comm. et al.

Korematsu Center lawyers, together with pro bono counsel from Akin Gump Strauss Hauer & Feld LLP, filed a brief on behalf of amici curiae former Secretary of Commerce, Secretary of Transportation, and Congressman Norman Y. Mineta, Joy Sakamoto Barker, Eileen Yoshiko Sakamoto Okada, and Sharon A. Sakamoto, who were incarcerated along with tens of thousands of other Japanese Americans during WWII, the Council on American-Islamic Relations, New York, Inc., and the Fred T. Korematsu Center for Law and Equality, supporting plaintiffs' challenge to the inclusion of a citizenship question on the 2020 Census. Amici argue that the court can and should meaningfully review the Census Bureau's addition of the citizenship question to determine whether it violates the Administrative Procedure Act and the Equal Protection Clause of the United States Constitution. The amici remind the court that absolute deference to the political branches has permitted historical abuses of both individual and group-level census information. History shows that the form of the census can meaningfully stunt the quality of its enumeration results.

Along with pro bono counsel from Akin Gump Strauss Hauer & Feld LLP, the Korematsu Center has both co-counseled amicus briefs and joined as amicus curiae along with several other organizations in its amicus filings in travel ban cases around the country. These organizations include the National Native American Bar Association, the South Asian Bar Association of North America, and all five affiliate offices of Asian Americans Advancing Justice. Our briefs emphasize the importance of meaningful judicial review in the context of immigration and national security. Our filings can be found below.

International Refugee Assistance Project v. Trump. The Korematsu Center and Akin Gump, joined by other civil rights organizations, will submit a brief to the Supreme Court in September on behalf of the children of Fred Korematsu, Gordon Hirabayashi and Min Yasui. Read our Fourth Circuit amicus brief here.

The Korematsu Center filed an amicus brief before the Ninth Circuit supporting the Fair Housing Center of Washington (FHCW). FHCW prevailed at trial by establishing that the defendant-landlord's occupancy restrictions had a disparate impact on families and thus constituted housing discrimination under the Fair Housing Act. The Korematsu Center's brief provided historical context demonstrating that occupancy restrictions have had, and continue to have, a disproportionate impact on families of color. It also asked the court to affirm the award of punitive damages, arguing that their deterrent effect is as important in disparate impact cases as it is in cases of intentional discrimination.

Executive Overreach: Challenges to the Termination of the Deferred Action for Childhood Arrivals (DACA) Program

Eastern District of New York, Second Circuit & Ninth Circuit

The Korematsu Center filed amicus briefs in the New York and California DACA litigations, on behalf of 42 historians and itself, examining how racially coded expressions or code words by government officials and politicians are used to advance discriminatory political objectives. The briefs explained the basis for the historians' opinion that racial animus against ethnic Mexicans and other Latinos has shaped President Trump's decision to terminate DACA.

The Korematsu Center and Legal Voice filed an amicus brief in a case in which the court must interpret Washington's Law Against Discrimination (WLAD) to define what constitutes harassment and who is liable for it. The Center asks the court to adopt a definition of discrimination that would encompass harassment - conduct that falls short of outright denial of service - such as humiliation, harassment, or insult. Such a definition would ensure that all people have the right to full enjoyment of public accommodations, and would impose liablity for unfair practices in places such as hospitals, civic spaces, restaurants, and hotels.

The Korematsu Center filed an amicus brief in support of Mr. Williams, who was sentenced to serve life without parole under Washington's persistent offender statute, also known as the "Three Strikes" law. Because Mr. Williams committed his first strike offense when he was only sixteen years old, the Korematsu Center argued that it is unconstitutional to impose a life sentence based, in part, on conduct committed as juvenile. The Center based its argument on recent cases from both the United States Supreme Court and Washington courts that recognize that the intrinsic nature of youth undercuts the penological justifications for imposing the harshest sentences.

Along with co-counsel Jeffrey Ellis, the Korematsu Center represents Mr. Light-Roth, who was convicted of murder when he was 19. The brief argues that the Washington Supreme Court should hold that its decision in State v. O'Dell applies retroactively. The court in O'Dell held that courts may consider whether the mitigating qualities youth diminishes the culpability of young offenders (i.e., over the age of 18 but still young).

The Korematsu Center submitted a brief supporting S.K-P.'s argument that article I, section 3 of the Washington constitution should guarantee counsel to children in dependency proceedings. The Center argued that because no federal precedent exists on the question of whether children in dependency proceedings are entitled to counsel under the Fourteenth Amendment, a Gunwall analysis is not required to apply article I, section 3 in the case. The Center alternatively argued that if a Gunwall analysis is necessary, notwithstanding the absence of federal law on point, the court's interpretation of article I, section 3 should be properly contexualized in a long-standing body of state constitutional law, state common law, and state statutory law designed to protect the interests of children in the deprivation context.

The Korematsu Center filed an amicus brief, along with Columbia Legal Services, TeamChild, and the Washington Defender Association, providing additional argument to support the lower court's decision that sentencing a juvenile to life without parole is categorically barred under Washington's constitution. The amicus brief focused on the utility of the Gunwall factors as important tools for development of an independent body of law under the Washington State constitution.

2017

The Korematsu Center filed an amicus brief, along with Columbia Legal Services and the Washington Defender Association, arguing that Washington's constitutional prohibition of cruel punishment required the court to interpret a juvenile sentencing statute as mandating concurrent rather than consecutive sentencing.

The Korematsu Center filed an amicus brief in support of Ms. Lares-Storms, providing the court with empirical literature demonstrating that drug-detection dogs are often unreliable, that drug-detection dogs are influenced by their handlers, and that dog sniff searches of racial minorities produce disproportionately high false positives when compared to dog sniffs of whites. The Center argued that this empirical literature raises important policy considerations that should lead Washington courts to require a warrant before conducting a dog sniff search of a vehicle.

The Korematsu Center, along with co-counsel, represents high school students in the Tuscon Unified School District (TUSD) in their challenge of the enforcement of A.R.S. § 15-112, which prohibits courses or classes that promote the overthrow of the United States government, promote resentment toward a race or class of people, are designed for pupils of a particular ethnic group, or advocate ethnic solidarity instead of treatment of pupils as individuals. Enforcement of this statute led to the elimination of the highly successful Mexican American Studies (MAS) program in the TUSD as well as the removal of books illuminating Mexican American history and perspectives from TUSD classrooms. A group of teachers and students challenged the constitutionality of the law based on the first and fourteenth amendments, and, after a successful appeal to the Ninth Circuit Court of Appeals, prevailed at trial on the equal protection claims before the Honorable A. Wallace Tashima in June and July 2017. For more information on case, please visit the Arizona Ethnic Studies Case page.

Working with counsel at Dorsey Whitney, the Korematsu Center filed a brief supporting the Northwest Immigrant Rights Project's request for a preliminary injunction preventing the United States Department of Justice from enforcing the terms of a cease and decist order in which the DOJ instructed NWIRP and other legal aid providers that they could no longer provide limited legal services to immigrants. The court granted the preliminary injunction in July. The Korematsu Center filed a brief in support of NWIRP's motion in which we examined the historical context of this and other cases where those in power have attempted to silence disempowered communities through attacks on their advocates.

The Korematsu Center, as co-counsel with Alaska Legal Services Corporation, has filed a lawsuit against Frontline Hospital and The Offie of Children's Services of the Alaska Department of Health and Social Services to enjoin the administration of psychotropic medications to Native Alaskan foster children in non-crisis situations. The complaint alleges that the practice of subjecting children to this type of medication violates the Alaska Constitution's guarantees of liberty and privacy, and violates statutes that allow individuals to withold or give consent to psychotropic medications.

Assisted by clinic staff, students in the Civil Rights & Amicus Clinic filed a memorandum in support of review of Mr. Scott's case, which presents the question of whether a future opportunity for parole can substitute for a juvenile defendant's constitutional right to have his or her characteristics of youth full considerd at sentencing, in light of Miller v. Alabama and Montgomery v. Louisiana. After the Court accepted review, the Korematsu joined Jeffrey Ellis as co-counsel on the supplemental brief.

The Korematsu Center consulted with merits counsel on the merits briefing, advocating a bright-line rule that when the last potential juror of a cognizable racial or ethnic group is excused, a prima facie violation under Batson v. Kentucky is established. The Court adopted the bright line rule.

Professor Charlotte Garden, along with co-counsel, submitted a brief on behalf of a group of labor economists and social scientists. This case is about whether job applicants may bring disparate impact claims under the Age Discrimination in Employment Act, and the brief uses social science evidence to show that older job-seekers fare much worse than their younger counterparts in finding work, placing them at risk of poverty. The brief explains that the ability to bring a disparate impact claim could help fight age discrimination in hiring - much as it has helped fight race and sex discrimination - and that Congress was aiming to take on the problem of age discrimination in hiring when it enacted the ADEA.

2016

The Korematsu Center, along with co-counsel The Phillips Black Project, filed an amicus brief in support of petitioner Michael Williams arguing that Missouri's parole procedures do not adequately provide individualized consideration of a defendant's youth and a meaningful opportunity for children to obtain release as required by Miller v. Alabama. The Center emphasized that state parole boards with very limited procedural guarantees and political decision makers with functionally unlimited discretion create a sham process to sidestep the meaningful opportunity to obtain release requirement of Miller.

The Korematsu Center was joined by the the Hispanic National Bar Association, the National Asian Pacific American Bar Association, the National Bar Association, the National LGBT Bar Association, and the National Native American Bar Association in filing a brief with the United States Supreme Court arguing that the federal government's power to deny or rescind federal registration of racially disparaging trademarks does not violate the First Amendment. The trademark registration in this case involved an Asian American dance band that named itself by a racial slur as part of an attempt to re-appropriate the term. A common public misperception is that denial or cancellation of federal registration means that the band and the Washington D.C. football team will lose their trademarks or will no longer be able to use their names. This is not the case. They remain free, as they have, to continue using their racially disparaging trademarks and can sue to protect against infringement. The amicus brief argues that the federal government's power is important as part of its power to regulate commerce and is especially important because of the way racially disparaging trademarks can lead to a return to a segregated marketplace. The Korematsu Center previously filed briefs on this issue before the Federal and Fourth Circuits of the United States Court of Appeals.

The Korematsu Center was joined by 19 organizations and 32 law school professors in filing an amicus brief with the New York Court of Appeals addressing color discrimination in jury selection. The Appellant in this case asserted that the prosecutor improperly used his peremptory strikes to exclude all dark-skinned women from the jury. Despite the prosecutor's failure to offer an explanation for striking one of the jurors, a dark-skinned Indian-American woman, both the trial court and the intermediate appellate court upheld the strike. The intermediate appeals court found that the Appellant failed to establish that the prosecutor struck this prospective juror because she was a member of a "constitutionally cognizable class." The amicus brief urged the Court to recognize that excluding an individual from jury service based on the color of her skin violates the Equal Protection Clause of the United States and New York Constitutions.

The Korematsu Center, along with co-counsel at Perkins Coie, submitted a brief in support of petitioners Zyion Houston-Sconiers and Treson Roberts arguing that Washington's auto-decline statute, which mandates that certain juveniles be tried and sentenced in adult court, violates the state and federal constitutional prohibitions against cruel punishment. The Center argued that recent case law from both the U.S. Supreme Court and the Washington Supreme Court recognizes a procedural corollary to the substantive right against cruel punishment, such that statutory schemes that prevent consideration of the youthfulness of juvenile offenders are unconstitutional, as they create a significant risk of disproportionate punishment.

Supervised by clinic staff, students in the Civil Rights & Amicus Clinic represented Mr. Merrick in his appeal of his § 1983 claim alleging that Inmate Legal Services violated his First Amendment right of access to the courts when it failed to file his pro se motion for reconsideration of his criminal appeal in the Arizona Court of Appeals, as well as his claim under the Religious Land Use and Institutionalized Persons Act.

The Korematsu Center filed an amicus brief arguing that Washington's death penalty statute is unconstitutional under both the Washington and federal constitutions, which prohibit cruel and unusual punishment. The Center argued that Mr. Gregory's statistical evidence of racial disproportionality in the imposition of the death penalty in Washington provided the Court a basis on which to revisit the constitutionality of the statute. The Center also discussed the extra-legal factors such as racial bias that continue to influence the administration of the death penalty. The brief explained that while aversive racism may negatively affects Black defendants, making them less likely to receive mercy (or discretionary leniency) from a jury, an equally important explanation for racial disproportionality is that in-group favoritism may positively affect White defendants, making them more likely to receive mercy.

The Center filed an amicus brief on behalf of the Center for Indian Law & Policy in support of the Tribes, arguing that a native foster child involuntarily admitted for emergency care to a private psychiatric hospital is entitled to a post-admission judicial hearing within 72 hours of admission to justify continued detention. The court awarded preliminary injunctive relief to the tribes, and the Center continues to monitor the case.

The Korematsu Center, along with co-counsel at Perkins Coie, filed this amicus brief highlighting the continued marginalization of Native Americans, and, against this backdrop, argued that Congress's decision to require the Patent & Trademark Office to refuse to register racially disparaging trademarks does not infringe upon Pro-Football's free speech. The Center represented the National Native American Bar Association, National Asian Pacific American Bar Association, Native Hawaiian Bar Association, and California Indian Law as amici curiae in support of the Blackhorse defendants.

2015

The Korematsu Center and co-counsel Mary Kelly Persyn filed this brief supporting Intervenors-Appellants California Teachers Association, arguing that teacher tenure laws protect teachers in the exercise of their professional discretion to the benefit of students and schools. The Center represented Award-Winning California Teachers, American-Arab Anti-Discrimination Committee, the Fred T. Korematsu Center for Law & Equality, and American Association of University Professors as amici curiae.

While the Washington Redskins trademark dispute has garnered national attention, a lesser-known case that is before the United States Court of Appeals for the Federal Circuit may determine whether the U.S. Patent and Trademark Office had the authority to rescind the Washington Redskins trademark. The amicus brief urges the court to recognize that federal registration of a disparaging mark implicates the government, and to not make the federal trademark registry a place where racism is recorded and authorized, and to not require our government to perpetuate racism.

This amicus brief addressed the importance of public sector agency fee requirements, under which union-represented workers must pay their share of the costs of contract negotiation and administration. The brief explained how the collective bargaining process, which is supported by agency fees, improves many states' abilities to deliver public services. Charlotte Garden, litigation director of the Center, along with co-counsel Matthew Bodie, filed the brief on behalf of 48 labor law and labor relations professors.

2014

Students in the Civil Rights Amicus Clinic case assisted the Center in filing an amicus brief supporting plaintiff-intervenor Latina farmworkers' request for a new trial based on improper racialization of the case, and specifically educating the court about the dangers of implicit in-group favoritism that could have manifested between the all-white jury and the white owners of the defendant corporation. The Center represented Asian Bar Association of Washington, Latina/o Bar Association of Washington, Loren Miller Bar Association, South Asian Bar Association of Washington, and Vietnamese American Bar Association of Washington as amici curiae.

In four consolidated cases, the Korematsu Center filed amicus briefs supporting juvenile defendants, setting forth medical research that youth offenders under age 18 are categorically different from adult offenders with regard to culpability, susceptibility to deterrence, vulnerability to peer pressure, and capacity to change, and arguing that all four juveniles be resentenced according to the considerations set forth in Miller v. Alabama.

Professor Charlotte Garden, along with co-counsel, submitted a brief on behalf of the Korematsu Center and a large group of labor law professors. The brief argues that states are free to bargain collectively with home healthcare aides who are paid by the state but hired and directed by individual customers, and that union-represented aides can in turn be required to pay for their share of the costs of collective bargaining. The brief focuses on how governments benefit when they choose to bargain collectively with their own workforces, and explains why common ways that states structure their labor relations are consistent with the First Amendment.

Professor Charlotte Garden, on behalf of the Korematsu Center and along with co-counsel, submitted an amicus brief in support of a group of retirees fighting to prevent their former employer from reducing their healthcare benefits. In Tackett, the Court was faced with deciding how to interpret ambiguous language in a collective bargaining agreement: should the language be read as committing the employer to pay for retiree health benefits for the life of the retiree, or only for the life of the three-year contract? To rebut the employer's argument that employers would presumably use very clear language if they intended to undertake such a large commitment as funding lifetime retiree health benefits, the Center's brief showed that retiree health commitments were first negotiated in a context dramatically different than today's. Specifically, the brief showed that employers were facing a very different set of incentives in the mid-1960s and 1970s, when many retiree health clauses were originally negotiated - particularly because retiree health benefits were often quite inexpensive. Thus, the brief reasoned that ambiguous language should not be taken as a sign that the parties did not originally intend to vest lifetime retiree health benefits.

2013

This was a Civil Rights Amicus Clinic brief asking the Court to safeguard the anti-retaliation protections of Title VII for employees who report discrimination. The Center represented the Committee of Interns and Residents SEIU, Doctors Council SEIU, and Korean American Medical Association as amici curiae.

The Korematsu Center filed an amicus brief supporting the petitioner's argument that he was entitled to a jury instruction addressing the unreliability of cross-racial identifications, and explaining how the unreliability contributes to racial disproportionality in Washington's criminal justice system. The Center represented the Loren Miller Bar Association of Washington and the Latina/o Bar Association of Washington as amici curiae.

The Korematsu Center filed an amicus brief educating the court about the importance of effective legal advice concerning the immigration consequences of crimes, after the United States Supreme Court's decision in Padilla v. Kentucky, and urging the court to give firm guidance that plea colloquies and forms cannot substitute for effective assistance of counsel.

This amicus brief, prepared by the Center with co-counsel, challenged provisions of the National Defense Authorization Act that permit military officials to indefinitely detain, without due process, individuals believed to be involved in or supporting terrorist activity. The brief asked the court to remember the lessons of the Japanese American incarceration and carefully scrutinize government actions that curtail civil liberties. The brief was filed on behalf of the children of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi as amici curiae.

2011

In this child custody case, an expert witness used profiles based on national origin to testify regarding the risk that a parent would abduct his child. The Center filed two amicus briefs in the case, requesting the courts to declare the use of such profile evidence improper and prejudicial. The Center represented the Asian Bar Association of Washington, the Pacific Northwest District of the Japanese American Citizens League, and the Vietnamese Bar Association of Washington as amici curiae.

The Center's amicus brief argued that it is unconstitutional to sentence a 16-year-old to jail for 92-1/2 years for a non-homicide offense, discussing scientific support for the conclusion that juveniles, by virtue of brain development, are less culpable and more capable of redemption than adult offenders. The Center represented the Latina/o Bar Association of Washington and the Loren Miller Bar Association as amici curiae.

In December 2011, the Center filed an amicus brief arguing that a police officer's search of a student on school grounds must be measured by the same standards as police officer searches elsewhere, not a lower standard that applies to searches by school principals and teachers. The brief assert that juveniles of color are particularly impacted by violations of rights within the criminal justice system.

2009

On September 11, 2009, the Korematsu Center filed its first amicus brief in the case of Turner v. Stime, a medical malpractice case in which jurors, during deliberations, made comments about plaintiff's counsel's race, referring to him, a Japanese American, as "Mr. Miyagi" and "Mr. Kamikaze." The Center represented the Asian Bar Association of Washington, South Asian Bar Association of Washington, and Washington Women Lawyers as amici curiae.

Amicus Briefs the Korematsu Center has submitted via the Civil Right to Counsel Initiative

Semenenko v. Dep't of Social and Health Services (Washington Supreme Court, 2014) (arguing in support of Supreme Court accepting review of the Court of Appeals decision because it was of "substantial public interest" and the lower court opinion denying the hearing right for late filing of the request could negatively impact hundreds of public assistance applicants and recipients who seek a hearing challenging agency denials of "brutal needs" benefits when they have good cause for the late appeal).

Weems v. State Board of Industrial Appeals(Washington Court of Appeals, 2014) (arguing that the Americans with Disabilities Act and the Washington Law Against Discrimination require provision of representational accommodation when an individualized assessment demonstrates a party with a disability cannot otherwise access the court system).

Amicus Briefs the Korematsu Center has joined

Standing Rock Sioux Tribe v. United States Army Corps of Engineers (United States District Court for the District of Columbia) (along with the National Congress of American Indians and other amici, arguing that the federal trust responsibility, which requres federal officials to exercise the strictest fiduciary standards of care when they address the government's treaty obligations, protects against assertions of federal power that would deprive Tribes of tribal lands).

In re Marriage of Black (Washington Court of Appeals, 2015) (advancing the argument that courts may not base custody decisions on a parent's sexual orientation or involvement in a same-sex relationship, because sexual orientation of the parent(s) is unrelated to the best interests of the children).

State v. O'Dell (Washington Supreme Court, 2015) (discussing recent neuroscience and precedent from the United States Supreme Court to support the argument that Washington's Sentencing Reform Act, allows courts to consider a defendant's youth as a basis for a downward departure even after a defendant has reached his 18th birthday, because young people have different characteristics relevant to mitigation).

State v. Cervantes (Washington Court of Appeals, 2012) (arguing that the United States Supreme Court's decision in Padilla v. Kentucky, requiring counsel to advise clients about the immigration consequences of plea deals, constituted a substantial change in the law, entitling Mr. Cervantes to an exception to the 1 year filing requirement for post-conviction relief, and arguing for Padilla's retroactive application)

Perry v. Hollingsworth (Ninth Circuit, 2010) (providing legal argument and empirical data to educate court about extent to which prejudice against gay men and lesbians impedes their ability to rely on traditional political processes used to protect minorities from discriminatory state action, so as to warrant heightened scrutiny of Proposition 8).